Excerpt:.....that marginal notes to sections cannot be relied upon to interpret the sections. but, the language of section 161(1) does not indicate any such intention contra to take away from the general nature of the expression (any person) occurring in section 162 as well that was considered by the privy council in pakala narayana swami's case. ' 11. another line of thinking has also been provoked by referring to decisions like state of kerala v. on questioning the accused persons arrested later, if the police got some information on which they want to question further one of the accused persons already under remand, we fail to see why he should not be handed over to the police. if so, we do not find any difficulty or anything wrong in concluding that, in cases like the ones before us,..........the learned judge. in that case what happened was that the magistrate remanded the accused to police custody first and then went back on the order and declined to give custody of the accused to the police. the matter came to this court, and raman nayar, j. (as he then was) and govinda menon, j. dismissed the petition without considering the question on merits. the learned judges just observed that, since the averment in the petition by the sub-inspector was that the accused told him when he was questioned in the sub jail that he was prepared to point out the weapon used for committing the offence and since the accused denied it and said that he had nothing to tell the police and was not willing to co-operate in the investigation, there was no use handing him over to the police......

Judgment:ORDER

T.C. Raghavan, J.

1. One of these revisions is by the accused persons and the other by the State, in two different cases. Both the cases are now at the investigation stage; and the accused persons in both the cases surrendered before two Magistrates. Shortly after the surrender, the police officers concerned applied to the magistrates ,to give custody of the accused persons to them to be questioned; and one of the magistrates allowed it while the other did not. The revision by the accused persons is against the former; and the revision by the State is against the latter.

2. When these petitions came before Narayana Pillai, J., the order in In re the Sub-Inspector of Police Meena-chil (Crl. R. P. No. 152 of 1961) by a Division Bench of this Court was placed before the learned Judge. In that case what happened was that the magistrate remanded the accused to police custody first and then went back on the order and declined to give custody of the accused to the police. The matter came to this Court, and Raman Nayar, J. (as he then was) and Govinda Menon, J. dismissed the petition without considering the question on merits. The learned Judges just observed that, since the averment in the petition by the Sub-Inspector was that the accused told him when he was questioned in the Sub Jail that he was prepared to point out the weapon used for committing the offence and since the accused denied it and said that he had nothing to tell the police and was not willing to co-operate in the investigation, there was no use handing him over to the police. Narayana Pillai, J. has observed in the Reference Order that, if in such cases where the accused persons surrender before magistrate the police have no right to question them, then the accused persons have only to abscond and surrender before magistrates and tell the magistrates that they have no information to pass on to the police in order to avoid their being questioned by the police. The question we have to consider in these cases is whether the police have a right, in such cases, to question the accused persons.

3. The first aspect of the question is whether, Under Section 161 of the Code of Criminal Procedure, the police can question an accused person during the investigation. It is urged by the counsel of the accused persons that Section 161 applies only to witnesses and not to accused persons. A few decisions have been brought to our notice on this question; and the most important one is the decision of the Privy Council in Pakala Narayana Swami v. Emperor A.I.R. 1939 PC 47. The Judicial Committee was considering the meaning of the expression 'any person' in Section 163 of the Code of Criminal Procedure, and their Lordships held that that expression was wide enough to include even a person who might ultimately be the accused. In this connection, it is worth while to consider the language of three sections, Sections 160, 161 and 162. Section 160 provides that a police officer making an investigation may require the attendance before himself of 'any person ............ who ............ appears to be acquainted with the circumstances of the case.' Section 161(1) states that a police officer making an investigation may examine orally 'any person supposed to be acquainted with the fact? and circumstances of the case.' Section 162(1) then provides that no statement made by 'any person' to a police officer in the course of an investigation shall, if reduced into writing, be signed etc. The marginal notes of Sections 160 and 161 are 'Police Officer's power to require attendance of witnesses' and 'Examination of witnesses by police' respectively. We need not mention the marginal note of Section 162.

4. The argument before us la that the expression 'any person supposed to be acquainted with the facts and circumstances of the case' will not include the accused. For this some reliance has been placed on the marginal notes of Sections 160 and 161 as well,. which speak of 'witnesses'. It is a well-established proposition that marginal notes to sections cannot be relied upon to interpret the sections. We do not think that any authority is required in support of this proposition; but if one is required, the decision in Balra.i Kunwar v. Jagatpal Singh ILR 26 All 393, a decision of the Privy Council, may be referred to. The Privy Council, in Pakala Narayana Swami's case, considered and approved the decision of the Full Bench of the Madras High Court in Syamo Maha Patro v. Emperor A.I.R. 1932 Mad 391 where the Full Bench held that 'any person' in Section 162 included a person accused of the offence under investigation.

In this connection, we shall also refer to the decision of the Supreme Court in State of Gujarat v. Shyamlal Mohanlal Choksi A.I.R. 1965 SC 1251 where their Lordships considered Section 94 of the Code of Criminal Procedure and observed that, though the word 'person' in that Section was general, there were other indications in the Section that the legislature did not intend to include therein an accused person. The reason was that the words 'attend and produce' were rather inept to cover an accused person and that it would be an odd procedure for a court to issue summons to an accused person present in court 'to attend and produce' a document. Their Lordships also observed that it would be still more odd for a police officer to issue a written order to an accused person in his custody 'to attend and produce' a document. If we examine the language of Section 160 in the light of this reasoning, what will emerge is that 'any person' in this Section will not include an accused person, because the Section says that the police officer may 'by order in writing, require the attendance before himself of any person', etc., which cannot apply to an accused person.

But, the language of Section 161(1) does not indicate any such intention contra to take away from the general nature of the expression (any person) occurring in Section 162 as well that was considered by the Privy Council in Pakala Narayana Swami's case. Thus, it is clear that 'any person' in Section 161 includes an accused person.

5. Otherwise, the result will be anomalous: an accused person who knows all about the crime or is at least presumed to know all about the crime will not come within the expression 'any person supposed to be acquainted with the facts and circumstances of the case'. If we may take the liberty of using a figure, an accused person is the centre of a circle and what the expression, 'any person supposed to be acquainted with the facts and circumstances of the case', indicates is the outer limit or the circumference of the circle. It is meaningless to say that the centre is not within the circle.

6. We may also, in this connection, refer to the decision of a Full Bench of the Allahabad High Court in Deoman Upadhyaya v. State : AIR1960All1 . The learned Judges observed in paragraph 56 of the judgment that, after the decision of the Privy Council in Pakala Narayana Swami's case A.I.R. 1939 PC 47 it was no longer possible to accept the argument that Sections 161 and 162 of the Code did not cover statements made by accused persons and that, under those sections, an Investigating Officer was not authorised to record the statements of such persons.

7. But there is one decision which took a different view on this question; and that is by Raju, J. in Amrut Soma Kunbi v. State of Bombay A.I.R. 1960 Bom 488. The learned Judge observed that an accused person could not come within the category of 'any person supposed to be acquainted with the facts and circumstances of the case'. The reasoning of the learned Judge was that, in the case before the Privy Council Under Section 162 of the Code, there was nothing to indicate a different intention to take away from the general nature of the expression 'any person' used therein. In other words, in the opinion of the learned Judge, the expression in Section 161, 'supposed to be acquainted with the facts and circumstances of the case', following the expression 'any person' indicated an intention contra. We are not able to appreciate this reasoning; and with all respect to Raju, J., we disagree with him. As we have already indicated, the expression 'any person' in Sections 161 and 162 of the Code has the same meaning and that expression includes an accused person. And, in our opinion, the Privy Council decided so: and this fact is evident from the circumstance that the Privy Council approved the decision of the Full Bench of the Madras High Court in Syamo Maha Patro's case A.I.R. 1932 Mad 391.

8. The next aspect relates to the scope of Sections 161, 167 and 344 of the Code of Criminal Procedure. The argument boldly advanced before us is that Under Section 161 no police officer has power to detain in custody a person arrested without warrant for a longer period than 24 hours, that the police officer has to produce such a person before a magitrate Under Section 167 and the magistrate, whether he is competent to try the case or not, may authorise the detention of the person in such custody as he thinks fit for a term not exceeding 15 days on the whole; and that, after such detention on the whole for 15 days Under Section 167, the only provision under which the person could be remanded is Section 344. It is also urged that Under Section 167 the magistrate has the power to decide whether the person should be kept in police custody or in judicial custody, while Under Section 344 the magistrate can remand only to judicial custody. The argument has proceeded that, in the cases before us, the remand by the magistrates could have only been Under Section 344, since the accused persons were not arrested by the police, and therefore, there is no question of handing them over to the custody of the police to be questioned, even if the police have such power to question them Under Section 161 of the Code.

9. From the language of these three sections the intention of the legislature that can be gathered is that a police officer arresting a person suspected of an offence can keep him in his custody Under Section 161 only for 24 hours, after which he has to produce the arrested person before a magistrate. And when such a person is arrested and produced before a magistrate (the magistrate need not be the magistrate who has jurisdiction to try the case-may be any other magistrate too) he may then, in the language of Section 167, 'authorise the detention of the accused in such custody as such magistrate thinks fit'. (The word 'remand' is not used in this section). It is possible to argue that, under this section, the nature of the custody (whether with the police or with the magistrate himself) can be decided by the magistrate. Coming to Section 344, what its language, at first blush, indicates is that the Section applies to a case which has reached the inquiry or trial stage (vide Sub-section (1)). But Sub-section (1-A) states that the magistrate can postpone the commencement of the inquiry or trial or adjourn the same.

This indicates that Section 344 applies to a case even prior to the stage of the commencement of the inquiry or trial. Still more, the Explanation to the Section puts the matter beyond doubt- that the Section applies to a case which is still in the stage of collecting evidence, i.e., which is still under investigation. The Explanation reads:

If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand'. From this Explanation it is clear that the Section applies to a case still under investigation-a case wherein the entire evidence has not yet been collected. It need not be stated that, in a case where investigation has concluded, no question of obtaining further evidence can arise. And what the Section says is that the accused, if in custody, may, by a warrant, be remanded, (the word 'remand' is used only in this section).

10. It is urged that, whatever might be the nature of the custody Under Section 167, the custody Under Section 344 is only judicial custody. In support of this, two or three decisions have also been brought to our notice. The first decision is the Division Bench ruling of the Travancore-Cochin High Court in In re Kunjan Nadar, (A.I.R. 1955 TC 74), where Koshi, C. J. observed that Under Section 344 remand meant remand to custody 'in a magisterial lock-up or jail during the postponement or adjournment of an inquiry or trial'. The next decision is by a Division Bench of the Allahabad High Court in Dukhi v. State : AIR1955All521 , where the learned Judges cautiously observed that a magistrate granting remand Under Section 167(2) had the discretion to remand the accused either to police custody or to jail custody, but it was doubtful if a court granting remand Under Section 344 had such discretion and could remand the accused to police custody. The third decision is the recent decision of the Delhi High Court by a Full Bench in Ajit Singh v. The State : AIR1970Delhi154 , where also the learned Judges held that the accused had to be 'remanded Under Section 344 not to police custody but to judicial lock-up.'

11. Another line of thinking has also been provoked by referring to decisions like State of Kerala v. Madhavan Kuttan : AIR1964Ker234 and the Delhi Full Bench decision already cited in Ajit Singh's case A.I.R. 1970 Delhi 154. It was argued in the aforesaid cases that Section 344 could be used to remand an accused person only after the report of the police Under Section 173 was received by the magistrate. Rightly, this argument was repelled in both the cases. As we have already indicated, the Explanation to Section 344 is clear that the Section applies to a case which is still under investigation: and the police-report Under Section 173 comes in only after the investigation is complete.

12. Though the language of Section 344 makes us also, at first blush, think on the same lines indicated in the aforesaid decisions (that the remand under the Section can only be to judicial custody), we have still doubts regarding the position. Cases are conceivable where the investigation cannot be completed within 15 days and where even after an accused person is remanded Under Section 344 he may have to be handed over to the police to be questioned not only for getting evidence in support of the prosecution but may even be to drop him from the array of accused persons. Suppose there are several accused persons in a case, of whom some have been arrested and have been remanded Under Section 344 and subsequently the rest of the accused are arrested. On questioning the accused persons arrested later, if the police got some information on which they want to question further one of the accused persons already under remand, we fail to see why he should not be handed over to the police. We are not bold enough to think that the legislature would not have been alive to such a situation. At any rate, we need not express a final opinion on this question, because this question does not arise in the cases before us.

13. In these cases, we need only consider whether the accused persons, who were not arrested by the police, but who surrendered before magistrates, could be handed over to the police for questioning. In such cases, we are of the opinion that the taking into custody of such persons by the magistrates (we do not call it remand) was really Under Section 167 of the Code of Criminal Procedure. Otherwise, a person who absconds and surrenders before a magistrate without allowing himself to be arrested by the police cannot be questioned at all by the police. We do not think that the legislature would ever have intended such a consequence. In this connection, we may refer to an old decision brought to our notice by the Public Prosecutor, the decision in Empress v. Ashraf Ali ILR 6 All 129. When a criminal case was under investigation, a person who was supposed to have been involved in the case was taken into custody by a magistrate on a private complaint. The magistrate sent him over to the police, from whose custody he escaped subsequently. The question came to be considered by the High Court whether such custody was police custody; and Straight, J. held that the custody by the police was Under Section 167 of the Code. The accused person was not arrested by the police and produced before the magistrate as contemplated by Section 167: still, the learned Judge held that the custody of the police was Under Section 167. Of course, no reason as to how the custody came within Section 167 is indicated in the decision.

14. No particular provision has been brought to our notice in the Code of Criminal Procedure authorising a magistrate to arrest an accused person or a person suspected of an offence. Still, it will not be disputed that magistrate has power to arrest such a person. As pointed out by a Division Bench of the Allahabad High Court in L. Ram Narain Singh v. A. Sen : AIR1958All758 , it will be anomalous that a police officer has the power to arrest a person reasonably suspected of having committed a cognizable offence, but the magistrate has no such power. The learned Judges considered Section 54 of the Code and came to the conclusion that a magistrate had also power to arrest a person suspected of an offence. If so, we do not find any difficulty or anything wrong in concluding that, in cases like the ones before us, where the accused persons surrendered before magistrates and where the magistrates took them into custody, the taking into custody was Under Section 167. It must then follow that the police are entitled to request the magistrates under the same Section to give custody to them of the persons for questioning.

15. It has been urged, rather too strongly, by the counsel of the accused persons that, if we pass orders directing the accused persons to be handed over to the police, it will be, in effect aiding testimonial compulsion. And the counsel have, in support of this argument, brought to our notice the decision in Fr. Benedict v. State of Kerala 1967 KLT 466. The counsel have also referred us to Article 20(3) of the Constitution. In Fr. Benedict's case, 1967 Ker LT 466, Raman Nayar Ag. C. J. observed that, if a person, who had nothing to tell the police an hour earlier, completely co-operated with the police for the purpose of discovering evidence that would incriminate him an hour later, then such evidence could only have been obtained by testimonial compulsion. We warn not to confuse issues: the power of the police to question the accused is one thing, and if, in questioning, they used methods which would lead to the conclusion that testimonial compulsion was used, then the question may be different.

Simply because there is a possibility of the police compelling the accused persons to give out incriminating material, their right to question them cannot be denied. Such material, if found to have been obtained in such manner, the court will eschew from consideration. Moreover, the accused persons are not bound to answer questions the answers to which have a tendency to incriminate them, Therefore, we cannot accede to the request of the counsel that the accused persons in these cases should not be handed over to the police for fear that the police might compel them to give out material which might be used as evidence against themselves. Incidentally, we shall also refer to the decision of the Supreme Court in State of Bombay v. Kathi Kalu Oghad : 1961CriLJ856 regarding the meaning of testimonial compulsion. The said decision contains a full discussion of the question, and the majority of the Judges propounded seven principles on the matter. It is not necessary for us to consider those principles in these cases.

16. Last comes the question as to what we should do in the cases before us on the particular facts and circumstances. In one of them, the offence was committed on 9th March 1970; and in the other, the offence was committed on 21st April 1970. In the first case, the accused persons surrendered before the magistrate on 13th May; and in the other, the accused surrendered on 4th May. In the first case, the police applied for getting custody of the accused persons on 16th May; and in the other case, they applied on 6th May. In the first case, the magistrate allowed the prayer of the police, while, in the second case, the magistrate refused the prayer of the police. It is evident from the facts stated above that in both the cases the accused persons were absconding after the crimes and they surrendered before the magistrates some time after. Immediately after surrender, within two or three days, the police came with their applications for custody of the accused persons.

In the view we have taken that the taking into custody of these accused persons was Under Section 167, we are at a loss to understand why the accused persons should not be handed over to the police to be questioned Under Section 161. There was no delay in applying by the police for the custody; and the delay was caused because of these proceedings. We feel that, in the circumstances, the prayer of the police should be allowed.

17. Crl. R. P. No. 234 of 1970 is consequently dismissed and Crl. R. P. No. 356 of 1070 is allowed. The police will make necessary applications before the respective magistrates for taking custody of the accused persons; and the magistrates will pass appropriate orders fixing the time and the other necessary details.